Mark Alan Moore and Laura Ellen Moore v Budjiti Aboriginal Corporation RNTBC

Case •

[2023] NNTTA 18

•

1 June 2023

NATIONAL NATIVE TITLE TRIBUNAL

Mark Alan Moore and Laura Ellen Moore v Budjiti Aboriginal Corporation RNTBC and Another [2023] NNTTA 18 (1 June 2023)

Application Nos:

QF2022/0001

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into a future act determination application

Mark Alan Moore and Laura Ellen Moore


(Grantee Party)

- and -

Budjiti Aboriginal Corporation RNTBC (QCD2015/007; QC2007/002)


(native title party)

- and -

State of Queensland

(Government party)

FUTURE ACT DETERMINATION THAT THE ACT MAY BE DONE

Tribunal:

Mr Glen Kelly, Member

Place:

Perth

Date:

1 June 2023

Catchwords:

Native title – future act – future act determination application – exploration permit for minerals other than coal application – s 39 criteria considered – native title party choosing not to provide evidence – common sense approach to evidence – effect of native title party choosing not to provide evidence - presumption of regularity – s 150 assistance provided – State regulatory regime - effect on native title rights and interests – impact of other land interests - effect of act on way of life, culture and traditions – effect of act on freedom of access – effect of act on sites or areas of particular significance – interest, proposals, opinions or wishes of native title party – economic or other significance of act – economic significance of Australian opal industry – public interest in doing of act – some public interest in doing of the act - proposed conditions – unenforceable conditions - conditions not to be imposed – determination that act may be done

Legislation:

Aboriginal Cultural Heritage Act 2003 (Qld) ss 23, 28, 35

Environmental Protection Act 1994 (Qld) ss 21A, 319

Land Act 1994 (Qld)

Mineral Resources Act 1989 (Qld) ss 129, 141, 146, 147

Mineral Resources Regulation 2013 (Qld) r 11

Native Title Act 1993 (Cth) ss 3, 29, 31, 32, 35, 36, 38, 39, 41, 109, 155, 237

Cases:

Butcher Cherel & Others on behalf of the Gooniyandi Combined #2 Native Title Claimants/Western Australia/William Robert Richmond [2010] NNTTA 167 (Cherel v Richmond)

Cheedy on behalf of the Yindjibarndi People v State of Western Australia [2010] FCA 690 (Cheedy v WA)

Ted Comanoo Evans and Richard Evans on behalf of the Koara People v State of Western Australia & ORS [1997] FCA 741 (Evans v WA)

India Bore Diamond Holdings Pty Ltd and Another v Bunuba Dawangarri Aboriginal Corporation RNTBC [2021] NNTTA 5 (India Bore Diamonds v Bunuba)

McKellar on behalf of the Budjiti People v State of Queensland [2015] FCA 601 (McKellar v Queensland)

Ward v Western Australia [1996] FCA 1452; (1996) 69 FCR 208(Ward v Western Australia)

Watson on behalf of Nyikina & Mangala v Backreef Oil Pty Ltd [2013] FCA 1432 (Watson v Blackreef)

Western Australia v Ward [2000] FCA 191 (Western Australia v Ward)

Western Australia/Koara People/Sons of Gwalia Ltd.; Mount Edon Gold Mines (Aust) Ltd; DJ & RM Cottee & PJ Townsend, (1996) 132 FLR 73; [1996] NNTTA 31 (Re Koara People)

Western Australia/Roberta Vera Thomas & Ors (Waljen)/Austwhim Resources Nl; Aurora Gold (WA) Ltd (1996) 133 FLR 124; [1996] NNTTA 30 (Waljen)

Western Desert Lands Aboriginal Corporation (Jamukurnu – Yapalikunu)/Western Australia/Holocene Pty Ltd [2009] NNTTA 49 (WDLAC v Holocene)

White Mining (NSW) Pty Ltd, Austral-Asia Coal Holdings Pty Ltd & ICRA Ashton Pty Ltd/Scott Franks & Anor (Plains Clans of the Wonnarua People)/New South Wales, [2011] NNTTA 110 (White Mining v Wonnarua)

WMC Resources v Evans (1999) 163 FLR 333; [1999] NNTTA 372; (1999) (WMC Resources v Evans)

Yindjibarndi Aboriginal Corporation RNTBC v FMG Pilbara Pty Ltd and Another [2014] NNTTA 8 (Yindjibarndi v FMG)
Representatives of the native title party: Melita Henderson and Michael Allbrook, Queensland South Native Title Services Ltd
Representative of the grantee party: Mark Alan Moore and Laura Ellen Moore
Representative of the Government party: Chris Rawlings & Georgia Power, Department of Natural Resources, Mines and Energy
Emma Hanley, Crown Law

REASONS FOR DETERMINATION

Background and approach

  1. This is a decision concerning whether the State of Queensland (State) may grant the exploration permit EPM 27946 (proposed permit) to Mark Alan Moore and Laura Ellen Moore (Grantee Party) and if so, whether the grant should be subject to conditions.

  2. The proposed permit covers an area of approximately 3 km2, is located approximately 70 km south west of Wyandra in the locality of Paroo Shire Council, Queensland. The Budjiti People are the registered native title holders for an area which covers the entirety of the proposed permit (QCD2015/007; QC2007/002).

  3. The State gave notice pursuant to s 29 of the Native Title Act 1993 (Cth) (NTA) of its intention to ‘do the acts’ of granting the proposed permit on 10 November 2021 through the expedited procedure pursuant to s 32 of the NTA.

  4. On 10 March 2022, the Budjiti Aboriginal Corporation RNTBC (Budjiti), which holds native title in trust for the Budjiti Peoples (McKellar v Queensland), objected to the application of the expedited procedure to the permit area. Directions for QO2022/0027 were set by Member Cooley on 15 March 2022 and revised on 7 April 2022, however the matter was finalised on 5 May 2022 by the Tribunal after the State withdrew the expedited procedure from the permit area.

  5. As a result, the parties were then required to negotiate in good faith under the right to negotiate process with a view to obtaining Budjiti’s agreement to the grant of the permit (s 31(1)(b) NTA).

  6. The parties were not able to reach agreement and on 2 December 2022, in accordance with s 35 of the NTA, the Grantee Party applied to the Tribunal for a determination pursuant to s 38 of the NTA that the act may be done (ie that the proposed permit may be granted). The application was accepted by the Tribunal on 6 December 2022 and that same day, the President of the Tribunal directed me to constitute the Tribunal for the purposes of conducting an inquiry into the application.

  7. According to s 36(2) of the NTA, I cannot proceed to make a determination in this matter if Budjiti satisfies me that either the State or Grantee Party failed to negotiate in good faith as required by s 31(1) of the NTA. Budjiti made no allegation of a lack of good faith on the part of either the State or the Grantee Party. As such, I have power under s 38 to conduct this inquiry and make a determination.

  8. Section 38 requires me to make one of the following determinations:

    1.that the grant of the proposed permit must not be done;

    2.that the grant of the proposed permit may be done; or,

    3.that the grant of the proposed permit may be done subject to conditions.

  9. The matters I am required take into account in making this determination are set out in s 39 of the NTA. In performing this, I adopt the principles enunciated in Waljen at [165] - [167], and subsequently approved by the Court in Cheedy v WA at [20] that the:

    task involves weighing the various criteria by giving proper consideration to them on the basis of evidence before us. The weighing process gives effect to the purpose of the Act in achieving an accommodation between the desire of the community to pursue mining and the interests of the Aboriginal people concerned.

    Also that

    The Act does not direct that greater weight be given to some criteria over others. The weight to be given to them will depend on the evidence.

  10. For the reasons set out below, my determination is that the grant of the proposed permit may be done.

Tribunal proceedings

  1. The parties were notified that a preliminary conference to discuss directions for the inquiry process was to be held on 15 December 2022.  Draft directions were circulated to the parties in advance of this conference. 

  2. In response to the draft directions, the Budjiti representative advised by email on 9 December 2022, that due to the time of year, the remote location of Budjiti country and the appointment of a new board at the PBC, they would request an eight week extension to the directions. As s 36 of the NTA imposes time limitations on me to make a determination, I extended the draft directions by seven weeks. These time limitations were discussed at the preliminary conference in which it was noted to all parties that no further extensions to directions would be provided and compliance would be expected on the dates set in directions.

  3. On 15 December 2022, following the preliminary conference, directions were issued to the parties. The Grantee Party provided their initial technical submissions on 23 December 2022, a month prior to the set compliance date. The State provided their technical submissions on the due date of compliance, 24 January 2023.

  4. Budjiti provided their contentions in relation to the s 39 criteria on 14 March 2023. This was followed by the Grantee Party and State on 12 April 2023. On 3 May 2023, Budjiti submitted their contentions in reply. On 10 May 2023, the State and Budjiti jointly submitted a statement of agreed facts. On the same date, the Grantee Party also submitted a statement of agreed facts.

Section 150 conference proceedings

  1. Section 150 of the NTA allows a conference of the parties to be directed to assist the resolution of matters relevant to the inquiry. This mechanism is commonly used to assist agreement development that may resolve matters of difference between the parties and narrow matters to be considered in an inquiry. In some instances, s 150 conferences may assist parties to resolve all matters and reach agreement on the future act.

  2. In their correspondence of 9 December 2022, the representatives of Budjiti indicated they would be seeking s 150 assistance to run concurrently with the matter, pending instructions from the PBC’s board. This was further discussed by parties at the preliminary conference, recognising the potential for resolution by agreement via s 150 assistance. The State and Grantee Party confirmed they would be available to attend a s 150 conference however the Grantee Party noted they would be in a remote location throughout January and February and would only be contactable by email.

  3. On 24 January 2023, the representative of Budjiti confirmed they had received instructions to request s 150 assistance. On 7 February 2023 I directed a s 150 conference to occur, however the first conference was delayed due to the remoteness of the Grantee Party as previously mentioned. Ultimately, a s 150 conference was able to be convened on 15 March 2023.

  4. I sought an update regarding any outcomes from the s 150 conference via my assisting Senior Officer on 28 March 2023. A Tribunal staff member confirmed that the first session had been held on 15 March 2023 and advised they would be seeking an update on the progress of party negotiations the week of 11 April 2023.

  5. I sought a second update on 19 April 2023 as to whether a second conference had been scheduled.  I was advised that there had been no substantial progress and a second conference had not been scheduled.  At the time of this determination, there have been no further conferences.

  6. As it stands, no agreement has been reached on any matter between the parties.

Section 39 inquiry material

  1. Following is a summary of the relevant material before me provided by the parties. All references are contained in Annexures 1 – 5.1 of this determination.

Grantee Party:

a)Substantive application materials, compromising of the documents listed in Annexure 1 (Grantee Party Documents 1 – 29).

b)Approved Work Program and Conditions dated 23 December 2022 (Grantee Party Document 30).

c)Environmental Plan dated 23 December 2022 (Grantee Party Document 31).

d)Environmental Request Information Sheet dated 23 December 2022 (Grantee Party Document 32).

e)Map of areas of interest for exploratory drilling dated 17 December 2022 (Grantee Party Document 33).

f)Pastoral Lease Report dated 29 November 2022 (Grantee Party Document 34).

g)Map of Restricted Area 264 for Development of Opal Area dated 29 November 2022 (Grantee Party Document 35).

h)Map of the entire opal mining field in the area of EPM27946 dated 29 November 2022 (Grantee Party Document 36).

i)Contentions dated 12 April 2023 (Grantee Party Contentions).

j)Statement of Agreed Facts dated 10 May 2023 (Grantee Party Document 38).

State:

a)State Book of documents dated 24 January 2023, compromising of the documents found in Annexure 3 (State Documents 1 – 33).  

b)State Statement of Contentions dated 12 April 2023 (State Contentions).

c)State Summary of Contentions dated 12 April 2023 (State Document 35).

d)State List of Authorities dated 12 April 2023 (State Document 36).

e)Statement of Agreed Facts submitted jointly with Budjiti dated 10 May 2023 (State Document 37).

Native Title Party:

a)Statement of Contentions dated 14 March 2023 (Budjiti Contentions).

b)Summary of Contentions dated 14 March 2023 (Budjiti Document 2).

c)Index of Documents dated 14 March 2023 (Budjiti Document 3).

d)Letter from Budjiti Aboriginal Corporation RNTBC Directors to NNTT dated 14 March 2023 (Budjiti Letter).

e)List of Authorities dated 14 March 2023 (Budjiti Document 5).

f)Annexure A – Proposed Conditions dated 14 March 2023 (Budjiti Proposed Conditions and set out in Annexure 5.1 of this determination).

g)Contentions in Reply dated 3 May 2023 (Budjiti Contentions in Reply).

h)Summary of Contentions in Reply dated 3 May 2023 (Budjiti Document 8).

i)Index of Documents Contentions in Reply dated 3 May 2023 (Budjiti Document 9).

j)List of Authorities Contentions in Reply dated 3 May 2023 (Budjiti Document 10).

k)Annexure B – Map dated 3 May 2023 (Budjiti Document 11).

f)Statement of Agreed Facts submitted jointly with the State dated 10 May 2023 (Budjiti Document 12).

  1. In this current matter, while Budjiti provide Contentions, the Budjiti Letter and Contentions in Reply, no supporting evidence or sworn statements have been provided in support.  Budjiti state:

    The Native Title Party has prepared evidence in support of these contentions in the form of affidavits. However, for cultural reasons the deponents have asked that their evidence not be provided, even if non-disclosure directions were to be made pursuant to section 155 of the NTA. The Native Title Party accepts that its contentions are therefore unsupported by evidence (Budjiti Contentions [4.2]).

  2. I am uncertain as to why this path may have been taken. Non-disclosure directions pursuant to s 155 of the NTA are relatively routine for matters before the Tribunal and, balancing the need for public interest and procedural fairness, are capable of catering for the concerns of native title parties in relation to sensitive cultural information. Nonetheless, Budjiti have made an evidentiary choice in this matter and have not placed evidence before me to support their contentions.

  3. It must be acknowledged that, as set out in Ward v Western Australia at [26], the common sense approach to evidence to be taken by the Tribunal is not the same as applying an evidential onus of proof. In this passage, Carr J remarks that:

    In administrative matters such as these, any party (not just the native title party) has what might be termed an evidentiary choice. They might choose not to lead any evidence on a particular issue. But that does not necessarily mean that they must fail on that issue i.e. that they have an evidential onus of proof.

  4. This passage continues however, by setting out that

    …where facts are peculiarly within the knowledge of a party to an issue, its failure to produce evidence as to those facts may lead to an unfavourable inference being drawn when the administrative tribunal applies its common sense approach to evidence. Again, if this happens, it will not be because of the application of any evidential onus of proof, but by the application of the common sense approach to evidence. 

  5. The Budjiti Letter is relied upon in various parts of the Budjiti Contentions.  I have accepted this into the materials to be considered in this inquiry, however note it is neither signed nor sworn, and neither is it accompanied by a sworn statement to authenticate or verify its contents. 

  6. The Tribunal is not bound by the rules of evidence (s 109(3) of the NTA), however it does not necessarily disregard them. Issues around evidence have been dealt with on a number of occasions by the Tribunal, generally in relation to the expedited procedure, however the same principles apply here. In Cherel v Richmond at [26] - [30], issues surrounding evidence based on the Tribunal’s general approach are examined. I adopt the approach outlined in Cherel v Richmond, and the cases cited therein, in making this determination.

  7. Based on this, I have accepted the Budjiti Letter into the materials for consideration for this inquiry, however given it is unsigned, unsworn and not accompanied by a sworn statement verifying its content, I must apply little weight to it and its contents.

Registered native title rights and interests

  1. The Budjiti Peoples, as identified by Sch 3 of McKellar v Queensland, were recognised as holding non-exclusive native title rights and interests over the lands and waters of the relevant consent determination area on 23 June 2015. These rights and interests were registered on the Native Title Register on 5 January 2016.

  2. The Budjiti determination area is approximately 10,938.58 km2 and includes the lands and waters described in Sch 1A of McKellar v Queensland.  The relevant registered rights and interests are laid out in McKellar v Queensland at [8] – [11] and are extracted as follows:

    a)access, be present on, move about on and travel over the area;

    b)camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters;

    c)hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes;

    d)take, use, share and exchange Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes;

    e)take and use the Water of the area for personal, domestic and non-commercial communal purposes;

    f)conduct ceremonies and hold meetings on the area;

    g)be buried and bury native title holders within the area;

    h)maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm;

    i)teach on the area the physical and spiritual attributes of the area;

    j)light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation; and

    k)be accompanied onto the area by certain non-native title holders, being:

    i.spouses and other immediate family members of native title holders, pursuant to the exercise of traditional laws and customs; and

    ii.people required under the traditional laws acknowledged and traditional customs observed by the native title holders for the performance of, or participation in ceremonies.

  3. These rights and interests also include the right to conduct activities necessary to give effect to them.

  4. The registered native title rights and interests do not confer possession, occupation, use or enjoyment of the lands and waters of the determination area to the exclusion of all others. These rights and interests are also subject to and exercisable in accordance with the laws of the State of Queensland and Commonwealth as well as the traditional laws and customs of the Budjiti Peoples for personal, domestic and communal purposes (including social, cultural, religious, spiritual and ceremonial purposes) (McKellar v Queensland [9] – [10]).

Other Land interests

  1. The proposed permit is wholly located upon underlying tenure Lot 21, Crown Plan HU53 (State Contentions [3.1]). The lot is subject to a rolling term preferential pastoral lease, known as Boobara, initially granted on 1 April 1981 for a period of 30 years under the redundant Land Act 1962 (Qld) for ‘no defined purpose’ (State Document 1 - 2; State Contentions [3.2], [3.4]). Per the Land Act 1994 (Qld), the rolling term lease was extended on 31 March 2011 and will expire on 31 March 2061 (State Contentions [3.3]).

  2. The proposed permit is also wholly within Restricted Area 264. The restriction was gazetted by an order in council under the Mineral Resources Act 1989 (Qld) (MRA) on 26 June 1992. The order commenced on 29 June 1992 and is cited as the Restricted Area 264 (Restriction of Grants) Order 1992 (State Document 4). The restriction area is also known as the Boobara Opal Area (State Contentions [3.5]). The restriction applies to the sub-blocks listed in the Schedule and states that exploration permits for minerals other than coal ‘may not be granted over an area of land that exceeds four sub-blocks and any one person at any time must not be the holder of more than two’ of these permits (State Document 4). EPM27946 contains sub-block ‘w’ within Charleville 3041 as listed in the restriction schedule.

  3. The exploration permit area is overlapped by six other mining claims and leases. These are all located to the south of the proposed permit area below Humeburn Road and are referenced in State Documents 7 - 12.  All except MC 60295 have been granted to third parties.  MC 60295 was granted to the Grantee Party on 27 July 2014 and is due to expire on 31 May 2025 (State Contentions [3.10]).

  4. Within the surrounding area of Lot 21, Crown Plan HU53, there are 18 other mining leases and claims which do not overlap the EPM area. They have all been granted to third parties as referenced in State Documents 13 – 30.

State Regulatory Regime and Grantee Party’s proposed activities

  1. Because s 39(1) expressly requires the Tribunal to consider ‘the effect of the act’ on the matters listed, ‘in order to carry out that mandate, it will be necessary for the Tribunal to form a view as to the activities which will be undertaken by a Grantee Party … and the impact of those activities on the matters referred to in s 39(1)’ (Watson v Blackreef [59]).

  2. The proposed permit is an exploration permit for minerals other than coal, in this circumstance opal, to be granted per Chapter 4, Part 2 of the MRA. Pursuant to s 146 (MRA) the proposed permit would be granted for a maximum period of 5 years, after which it may be renewed (s 147 MRA).

  3. The entitlements of the permit holder are set out in s 129 of the MRA. These entitlements are subject to conditions per s 141 (MRA) and r 11 of the Mineral Resources Regulation 2013 (Qld). Such conditions include mandatory compliance with the Land Access and Small Scale Mining Codes, improvement and restoration of the exploration permit and that the holder shall not obstruct or interfere with any right of access to the permit area during the term unless otherwise approved in writing by the Minister (s 141(aa)(i-ii), (b), (d) MRA).

  4. As set out by the State, the exploration activities are regulated under the Environmental Protection Act 1994 (Qld) (EPA). In particular, holders of an exploration permit are bound by the general environmental duty set out in s 319 of the EPA and as a small scale mining operation, are required to comply with s 21A of the EPA.

  5. Additionally, as put forward by the State, the Grantee Party is required to comply with the Aboriginal Cultural Heritage Act 2003 (Qld) (ACHA) which imposes a duty of care in relation to the recognition, protection and conservation of Aboriginal cultural heritage as s 23(1) of the ACHA. A non-exhaustive list of matters to which a Court may have regard in determining if a party has discharged their duty of care is set out in s 23(2) of the ACHA. Further to this, the Duty of Care Guidelines 2004, which are a regulation pursuant to s 28 of the ACHA to ensure reasonable and practical measures to avoid or minimise harm to Aboriginal heritage, are in operation. Clause 1.14 of the Duty of Care Guidelines sets out that strict compliance with these guidelines affords compliance with the duty of care.

  6. The State has provided a copy of ‘Eligibility criteria and standard conditions for mining lease activities – Version 2’  (State Document 32), which implies they also intend for these conditions to apply to the proposed permit.  The Grantee Party further identifies that ‘Opal Earthworks special conditions in regard to drilling and excavation’ apply to the permit area as stated in their Approved Work Program and Conditions (Grantee Party Document 1; Grantee Party Document 13; Grantee Party Document 30).

  7. The materials provided by the Grantee Party indicate that they ‘propose to conduct, predominantly, exploratory drilling with a 9-inch auger drilling rig … [and] the drilling program will include immediate backfilling and remediation’ (Grantee Party Document 1, p 3). The area of temporary disturbance will be approximately 1 m2 for each drill hole (Grantee Party Document 31, p 2).  The Grantee Party notes that ‘if positive drill sample results are achieved, then it may be necessary to costean to obtain bulk samples’ (Grantee Party Document 1, p 3).

  8. The Approved Work Program and Conditions outline the proposed activities of the Grantee Party over the five year permit (Grantee Party Document 30). This would include, but not be limited to, hand sampling, drilling, excavator trenching and backfill excavations among general site logistics (Grantee Party Document 13; Grantee Party Document 30). Over the span of the proposed permit, the Grantee Party aims to drill approximately 250 9-inch holes and excavate ten 20 m x 5 m trenches, all to be backfilled (Grantee Party Document 13; Grantee Party Document 30).

  9. The proposed drilling areas are cited in Grantee Party Document 8 and Grantee Party Document 33 provided by the Grantee Party. The former map, dated 7 March 2022 (Grantee Party Document 8), highlights the entire permit area as drilling areas of interest, excluding the overlapping leases.  The latter map, dated 17 December 2022 (Grantee Party Document 33), has removed the north-east portion of the permit as an area of interest.  Therefore, it is possible to assume that the latter map is the most up to date plans of the Grantee Party.

  10. Although there are indications that activity will be limited to certain areas of the proposed permit, given what looks to be an evolving view of the prospective portions of the proposed permit, for the purpose of this determination I will assume the Grantee Party will exercise the full extent of the rights afforded to them by the proposed permit over the full extent of the proposed permit.

  11. As previously mentioned, the proposed permit also overlaps a number of other mining claims and leases. This includes MC 60295, which is also held by the Grantee Party and is wholly located within the area of the proposed permit. The Grantee Party advises that because of this, they will not be camping on or constructing any new major access tracks in the permit area (Grantee Party Document 1, p 6; Grantee Party Document 31, p 2), however, a small number of new access tracks may be required during preparation of drill sites (Grantee Party Document 1, p 3).  

  12. The Grantee Party states that all equipment and fuel will be stored on their current mining claim and access to the proposed permit area will be from MC 60295 via existing tracks (Grantee Party Document 1, p 6; Grantee Party Document 31, p 2). The Grantee Party has also submitted an Environmental Plan to rehabilitate the site following exploration activities as required by the relevant conditions.

CONSIDERATION

General contentions on the State’s regulatory regime and proposed activities

  1. Budjiti contend that the high level of activity allowed by the proposed permit is likely to cause disturbance (Budjiti Contentions [2.3]). This is as a result of the MRA allowing, at s 129, the Grantee Party to enter and re-enter the area of the proposed permit for on an unlimited number of occasions or without limitation on personnel and machinery (Budjiti Contentions [2.2]).

  2. In their reply contentions relating to this same section of the MRA, Budjiti further contend that the use and transport of equipment will damage cultural heritage in the permit area (Budjiti Contentions in Reply [3.11]). Additionally, Budjiti make the contention that the MRA does not provide for the adequate protection of Aboriginal cultural heritage and that significant cultural heritage is at risk if the proposed permit is granted (Budjiti Contentions in Reply [3.11]).

  3. On the ACHA, Budjiti contend the reliance of the State on this Act is an inadequate response in that it contends the Duty of Care Guidelines are inadequate, that the ACHA favours land users or proponents and has insufficient mechanisms to protect Aboriginal Cultural Heritage (Budjiti Contentions in Reply [3.12]). Budjiti also contend the ACHA has insufficient emphasis on intangible heritage, a lack of resourcing to allow Traditional Owner groups to map heritage and a failure to embed principles of free, prior and informed consent, presumably in relation to agreement to disturb heritage (Budjiti Contentions in Reply [3.12]).

  4. On the matter of environmental protections, Budjiti contends that, in light of the proposed activities, the Grantee Party has not specified in its environmental plan how much vegetation will be cleared, the extent of costeaning required and how it would rehabilitate the land (Budjiti Contentions [2.7]). Budjiti further contend the EPA provides insufficient protection for Aboriginal cultural heritage, particularly in relation to flora and fauna which Budjiti contend are referred to as totems, although no further particulars are given on this in the area of the proposed permit (Budjiti Contentions in Reply [3.14]).

  5. I have considered these contentions within my examination of the s 39 criteria.

Consideration of the s 39 criteria

Section 39(1)(a)(i) – the effect of the act on the enjoyment of Budjiti’s registered native title rights and interests

  1. In considering the effect of the acts on the enjoyment of native title rights and interests, the Court has set out its view that references to the enjoyment (and protection) of native title rights and interests refer to those which have a physical presence on the land in association with traditional social and cultural practices (Western Australia v Ward [104]). The Court then establishes that a protection would only apply to ‘the physical enjoyment of rights and interests that are of a kind that can be exercised on the land, and does not protect purely religious or spiritual relationships with land’ (Western Australia v Ward [104]).

  2. This being the case, the active exercise and enjoyment of these native title rights is to be established in matters such as this, to which the Tribunal can make findings on the manner in which they are affected.

  3. Supplementary to the discussion at [22] - [25], in WMC Resources v Evans at [31] the Tribunal has previously determined that:

    …evidence needs to be given of how those registered native title rights and interests (whether determined or only claimed) are exercised and enjoyed.  A mere statement, contention or assertion that interests claimed will be effected without evidence of their current use and the potential impact on them will not suffice to enable the Tribunal to make findings on this point.

  4. I have previously examined issues surrounding the submissions of Budjiti, namely that sworn evidence has not been provided to this inquiry.  This being the case, the materials before me in examining the effect on native title rights and interests from the native title holders consist of the Budjiti Contentions and Budjiti Contentions in Reply, and with lesser weight to be applied to it, the Budjiti Letter.  

  5. Budjiti make contentions on each of the native title rights and interests listed at [30] of this determination.  These centre on the right to access, be present on, move about on and travel over the area (access), which Budjiti contend the remainder of these rights and interests are contingent upon.  In relation to access, Budjiti contend these will be necessarily affected by the grant of the proposed permit, and that the grant of the proposed permit will have a lasting impact on the ability to access the area due to impact on the landscape and physical environment (Budjiti Contentions [4.7]).

  6. Further to this, Budjiti contend that although the Grantee Party is required not to obstruct the access of Budjiti people without the prior approval of the Minister pursuant to s 141(d) of the MRA, the grant of the proposed permit will have ongoing impact by restricting access and by the physical impact of exploration activities, irrespective of the intention of the Grantee Party (Budjiti Contentions [4.8] – [4.9]).

  7. As Budjiti contend the remainder of their native title rights and interests are contingent upon access to the area of the proposed permit, they rely on these same contentions for these other rights.  The exceptions to this are the right to bury and be buried within the area, which Budjiti contend will be interfered with by the digging of trenches in the proposed permit area (Budjiti Contentions [4.22]) and the right to maintain places of particular significance and protect them from physical harm.  On this, Budjiti contend that the area is culturally significant and as such, do not wish to see the proposed permit granted (Budjiti Contentions [4.24]; Budjiti Letter [2], [4]).

  8. The Grantee Party makes no contentions on s 39(1)(a)(i) (Grantee Party Contentions [1]). In contending the grant of the EPM is unlikely to affect the exercise of native title rights and interests, the State points to the lack of evidence provided by Budjiti in support of its contentions and refers to the constraints placed on the Grantee Party by the requirements of State regulation, namely the MRA, EPA and ACHA. The State also points to the existence of a rolling term lease on the area which may already impact on the enjoyment of native title rights and interests (State Contentions [5.4], [5.6] - [5.7]).

  9. In their reply, Budjiti note that while the State highlight a large number of existing mining tenures which may impact the enjoyment of native title rights and interests, the majority of these are outside the proposed permit and those that are within it are confined to the southern portion of the proposed permit.  As such, Budjiti contend, most of the permit has no historical mining and has not been significantly disturbed by mining (Budjiti Contentions in Reply [3.6]).

  10. While these assertions are made by Budjiti, there is no specific evidence on the actual enjoyment of these rights, the frequency of this enjoyment or how the grant of the proposed permit will affect the enjoyment of these rights.  Not having such evidence before me constrains any assessment I may make, or any conclusions I may arrive at relating to how these rights may be affected.  Put simply, aside from the bare assertions made by Budjiti, there is nothing before me I can reasonably assess.

  11. I accept the activities of the Grantee Party and their conduct may have an impact on the landscape and potentially other users of the land.  Given there is no direct evidence before me on the practice of the native title rights and interests of the Budjiti people or the impact upon them that may arise from the grant of the proposed permit however, I cannot make a finding that there will be an effect for the purposes of this determination.

Section 39(1)(a)(ii) – the effect of the act on Budjiti’s way of life, culture and traditions

  1. In Waljen, the presiding members remarked that ‘[a]s with the previous criterion there will need to be evidence of the way of life, culture and traditions of the native title parties and of the effect of the proposed act on them’ (Waljen [171]). Member Sosso expanded on this in White Mining v Wonnarua at [48] by saying that ‘[i]n order for the Tribunal to sensibly evaluate the likely effect of the doing of the future act on the matters contained in s 39(1)(a), there must be evidence from which inferences can be drawn and scenarios developed.’

  2. Budjiti contend there will be impact and rely on the Budjiti Letter to express this (Budjiti Contentions [4.31]).  The Budjiti Letter sets out that the way of life, culture and traditions of the Budjiti people is connected to and involves the exercise of their native title rights and interests, and that diminishing these native title rights and interests ‘robs Budjiti people from the ability to practice their way of life, culture and traditions’ (Budjiti Letter [6]).

  3. The Grantee Party make no contentions relating to s 39(1)(a)(ii) (Grantee Party Contentions [1]) while the State make the same contentions as those outlined in the previous section at paragraph [61].

  4. While Budjiti make the same contentions in reply as for s 39(1)(a)(i), of relevance here is the contention that the native title rights and thereby way of life, culture and traditions of the Budjiti people is not restricted to physical activity but includes a spiritual connection and that physical impact on the land can result in spiritual harm. This spiritual relationship, Budjiti contend, will be impacted by the grant of the proposed permit (Budjiti Contentions [3.18]) and by inference, so too would their way of life, culture and traditions.

  5. In keeping with the precepts expressed previously relating to evidence and as expressed by Member Sosso in White Mining v Wonnarua at [48]:

    …with respect, one can only evaluate the likelihood of any future negative impacts of the grant of the tenement if there is evidence before the Tribunal about the contemporary way of life, culture and traditions of the claim group and how that way of life, culture and tradition manifests itself on the subject land.

  6. While Budjiti have made a number of assertions in both their Contentions and the Budjiti Letter, no evidence has been provided in support of these assertions.  While I again accept that the grant of the proposed permit may have some impact on the way of life, culture and traditions of Budjiti, it is difficult for me to say for certain what this might be given the Budjiti submissions rely on contention and assertion rather than sworn evidence that allows me to draw inferences and develop scenarios. 

  7. Because of this, I have formed the view that the material provided by Budjiti is insufficient for me to find the grant of the proposed permit will have an adverse effect on Budjiti’s way of life, culture and traditions.

Section 39(1)(a)(iii) – the effect of the act on the development of Budjiti’s social, cultural and economic structures

  1. Budjiti contend they are seeking to develop the structures contemplated in this section through the engagement of experts and researchers with the intention of developing Budjiti people and culture (Budjiti Contentions [4.33]).  The Budjiti Letter details this further and includes information on the development of mapping and surveying of Budjiti country using drone technology (Budjiti Letter [7]).  Budjiti also state their view that projects such as this will be impacted by the grant of the proposed permit (Budjiti Letter [7]). 

  2. Further to this, Budjiti contend there is no evidence before the Tribunal of any obligation or agreement with the Grantee Party for employment and economic participation of Budjiti people (Budjiti Contentions [4.34]).

  3. Like previous sections, the Grantee Party make no contentions on this topic (Grantee Party Contentions [1]). The State also repeat the same contentions as those made for s 39(1)(1)(i) and (ii), as does Budjiti in its Contentions in Reply.

  4. While it looks to be the case that the Grantee Party has made no provision for the employment or economic participation in the activity allowed by the grant of the proposed permit, it must be acknowledged that the activity is limited, being exploration rather than active mining.  Additionally, the nature of the Grantee Party looks to be also limited, being an owner operator consisting of two individuals.  As such, outcomes such as employment opportunities would appear to be limited or is perhaps beyond the capacity of the Grantee Party.

  1. In relation to the other activities indicated by Budjiti, the mapping and surveying of Budjiti country, it is difficult to conclude the grant of the proposed permit will have an impact on them.  The proposed permit area is approximately 3 km2, which is a very small area in the context of the broader Budjiti determination area.  Additionally, it is difficult to conclude that the activities allowed by the grant of the proposed permit will affect the mapping and survey of Budjiti country in anything more than a minute way, if at all.  In any case, like previous sections, the materials provided by Budjiti are assertion based and are not supported by any sworn evidence that explores this issue in a deeper way.

  2. This being the case, I am unable to find the grant of the proposed permit will have an adverse effect on the development of Budjiti’s social, cultural and economic structures.

Section 39(1)(a)(iv) – the effect of the act on Budjiti’s freedom of access to the land and waters, and freedom to carry out rites, ceremonies or other activities of cultural significance

  1. Budjiti simply contend the grant of the proposed permit will affect freedom of access to carry out rites, ceremonies or other activities of cultural significance for the same reasons as those it contended would have an effect on the native title right of access to the area (Budjiti Contentions [4.36]). 

  2. As before, the Grantee Party makes no contentions in relation to this topic (Grantee Party Contentions [1]).  The State simply contends it is not aware the grant of the proposed permit would have an effect (State Contentions [5.8]).

  3. In response to this, Budjiti contend that the State cannot say there will be no impact as it is not privy to the activities of cultural significance that are conducted within the area of the proposed permit (Budjiti Contentions in Reply [3.21]).  Unfortunately, and for the purposes of this determination, neither is the Tribunal.  As in other portions of this determination, Budjiti provide no evidence as to the rites, ceremonies or activities of cultural significance that may occur on the area of the proposed permit, how and when they may be undertaken and how access to conduct these activities is affected.

  4. As a result of this lack of information, I am unable to find there will be an effect on Budjiti’s freedom of access to the land and waters, and freedom to carry out rites, ceremonies or other activities of cultural significance.

Section 39(1)(a)(v) – the effect of the act on any area or site, on the land or waters concerned, of particular significance to the native title parties in accordance with their traditions

  1. The expression ‘areas or sites of particular significance’ is also used in s 237(b) of the NTA when making an inquiry into the application of the expedited procedure. To be of ‘particular significance’, an area or site must be of special or more than ordinary significance to the native title party according to their traditions and it must be known, able to be located and its significance able to be explained to the Tribunal (Yindjibarndi v FMG [17]).

  2. Budjiti contend that the area of the proposed permit is of particular significance (Budjiti Contentions [4.37]) with the Budjiti Letter also stating that the area of the proposed permit holds high cultural significance for the Budjiti people (Budjiti Letter [4]).

  3. Aside from this, there is no further information.  The nature of the significance of the area is not explained in the Budjiti materials and neither is the reason it is considered as being of more than ordinary significance to the Budjiti people.  Rather, there is simply the generalised statement of particular significance with none of the attendant material that would be expected to support this assertion.

  4. In light of this, I am unable to make a finding there are places, or is a place, of particular significance within or in the surrounds of the proposed permit.  As a result of this, I am unable to determine the act will have an effect on any places of particular significance to the Budjiti people.

Section 39(1)(b) – Budjiti’s interests, proposals or wishes in relation to the management, use or control of the land or waters where there are native title rights and interests that will be affected by the act

  1. Budjiti state they are the Aboriginal Party for the area of the proposed permit for the purposes of s 35 of the ACHA. As such, Budjiti contend they have a right to protect their cultural heritage under the ACHA and should be involved in any assessment and management of cultural heritage otherwise there is a risk that significant cultural heritage may be harmed or overlooked (Budjiti Contentions [4.39]).

  2. Budjiti then contend that in the first instance, the Tribunal should determine that the act should not be done or in the alternative, apply the conditions proposed by Budjiti (Budjiti Contentions [4.41] - [4.42]) that:

    a.Any permit activities to be limited to an area south of Humeburn Road; and

    b.Prior to any proposed activities on the land commencing, a Cultural Heritage Survey is to be completed by the Aboriginal Party pursuant to the conditions provided by Budjiti. 

  3. These proposed conditions are contained in Annexure 5.1 of this determination.

  4. Budjiti contend it is appropriate for the Tribunal to impose such conditions as without them, the heritage concerns of Budjiti will not be addressed (Budjiti Contentions [4.46]).  The Grantee Party makes no contentions on this issue while the State neither consents to nor opposes the proposed conditions, saying instead they are a matter for the Grantee Party and Budjiti (State Contentions [6.1]).

  5. I address these proposed conditions and conditions more generally in a further section of this determination.

Section 39(1)(c) – The economic or other significance of the act to Australia, the State, the area and Aboriginal peoples who live in the area

  1. Budjiti contend the grant of the proposed permit provides little or no economic benefit to Australia or the State of Queensland (Budjiti Contentions [4.48]) and that it is unlikely to lead to the creation of jobs, an influx of people to the region or to a mining claim or lease of high value that would make any significant contribution to the local, state or national economy (Budjiti Contentions [4.50]).

  2. Budjiti highlight the low level of expenditure per year outlined in the approved work program (Budjiti Contentions [4.49]) and contend that according to a report from the Queensland Government, the ‘QLD Annual Mineral Production, Sales Value and Contained Metal covering financial years 2015-16 to 2020-21’, opal contributed approximately 0.25% of the value of all non-metallic minerals produced during the 2020-21 financial year in Queensland (Budjiti Contentions [4.51]).

  3. I have examined this reporting to confirm this is the correct figure, which it appears to be for that financial year.  I also note there is strong fluctuation in the relative value of opal in other financial years in this source material. For example, opal is reported to have contributed to 22% of the non-metallic mineral value in the 2017-18 financial year.  Given this enormous fluctuation, which may indicate faults in data collection, I have reservations about drawing conclusions from this source.

  4. The Grantee Party also raises issues with this information set, highlighting that reporting requirements are likely to see a significant under reporting of opal produced each year (Grantee Party Contentions [1]).  It is difficult to understand whether this contention of the Grantee Party is correct, however it does serve to highlight issues with the data.

  5. Further to this, the Grantee Party emphasises that the value of opal is extensively contained within downstream processing and retail and provides a series of examples of where or how this may be of significance (Grantee Party Contentions [1]).  Additionally, the Grantee Party asserts further economic significance through the purchase of goods and services in the local area, thereby making a contribution to the local economy (Grantee Party Contentions [2]).

  6. For their part, the State does not contend the grant of the proposed permit will have a major economic impact although it recognises the potential for local economic benefit (State Contentions [5.11] - [5.12]). In reply, Budjiti contend the State have provided no evidence for this assertion and in any case, s 39(1)(c) relates to national or state economic benefit, not local (Budjiti Contentions in Reply [3.23]).

  7. Budjiti further contend that the lack of economic benefit from the proposed permit contrasts with the cultural significance of the area covered by the proposed permit.  As such, Budjiti contend, the protection of cultural heritage should outweigh the economic benefit (if any) of the proposed permit (Budjiti Contentions in Reply [3.24]).

  8. This last point is pertinent to this inquiry, given it seeks to balance a variety of criteria to ascertain a path of action.  Also, while remarks have been put forward about the broader or downstream value of opal, this consideration needs to focus on the particular act in question, which is the grant of a permit for exploration.

  9. Given it is an exploration permit over a limited area of land, it is my view that the economic significance in the manner described by s 39(1)(c) is minimal. It may of course give rise to mining at some time in the future, however that is not able to be known at this point. In any case, the grant of title that would permit mining would be the subject of a separate process and separate consideration.

  10. Given this, I am satisfied the grant of the proposed permit is of limited economic significance, mainly due to the nature of the permit and the type of activity it allows, so is of little account in this determination. 

  11. However, in weighing this against the asserted cultural significance, it must also be said that Budjiti have not presented evidence to support their contentions, leaving me unable to reach positive conclusions on the cultural significance of the area.  Because of this, even the relatively low economic value of the act cannot be outweighed by the assertions of cultural significance.

Section 39(1)(e) – Any public interest in the doing of the act

  1. In regard to the public interest of doing the act, Budjiti contend that instead, there is public interest in not doing the act.  This is due to there being public interest in the protection of culture, heritage and native title which outweighs the limited benefit of the grant of the proposed permit (Budjiti Contentions [4.53]).

  2. In making this contention, Budjiti cite WDLAC v Holocene at [182] in which Deputy President Sumner made remarks to this effect. The contrast here is that in WDLAC v Holocene, the native title party provided a very significant body of evidence from which the particular significance of the area could be understood and which allowed a comprehensive consideration of the s 39 criteria as a whole. This has not occurred here. Budjiti have not provided evidence and this has not allowed the type of findings such as those in WDLAC v Holocene to be made.

  3. The Grantee Party relates its public interest argument towards the support of local businesses from which goods and services are purchased.  This it says, supports small family businesses which rely on local demand and contributes to local facilities (Grantee Party Contentions [2]). 

  4. The State simply contend that the grant of the proposed permit is in the public interest insofar ‘as it contributes generally to the maintenance of a viable mining industry within Queensland’ (State Contentions [5.15]). 

  5. In their reply contentions, Budjiti reiterate their contention that the grant of the proposed permit is not in the public interest or that in the alternative, this public interest criterion should not outweigh other criteria under consideration. Rather, Budjiti contend, a test of public interest should involve a balancing exercise of the consideration of public benefit of the grant of the proposed permit and the cultural harm it may cause to native title holders (Budjiti Contentions in Reply [3.31]). In making this assessment, Budjiti contend that regard should be had to the preamble of the NTA, s 3(a) of the NTA which provides that a main object of the NTA includes the protection of native title and that an act such as this may be compensable, payable by the State of Queensland (Budjiti Contentions in Reply [3.32]).

  6. I have no issue with the contentions made by Budjiti here.  The issue at hand is that no evidence has been provided by Budjiti to enable a consideration of the impact on native title and heritage as against the utility of the grant of the proposed permit in the manner in which Budjiti puts forward.  This has led to me being unable to find that the grant of the proposed permit will have an adverse effect on the exercise of Budjiti’s native title rights and interests due to there being insufficient material before me, as stated at [64] of this determination.

  7. Given the contention of the Grantee Party, I am prepared to conclude there is some, if limited, public interest in the grant of the proposed permit. To be clear, the limitation on this public interest is a function of the small size of the proposed permit and the scale of the activity allowed by the terms of the proposed permit. Additionally, given my findings in previous sections, I have formed the view that this public interest in the grant of the permit is not outweighed by other factors or other s 39 criteria.

Section 39(1)(f) – Any other matter the Tribunal considers relevant

  1. Aside from those matters that are mandatory considerations in s 39 of the NTA, I am of the view that there are no other relevant matters not already considered above or that are not incorporated in the following sections.

Section 39(4) – Agreements to be given effect

  1. The State and Budjiti jointly submitted a statement of agreed facts while the Grantee Party submitted a like statement separately.  I have taken these into consideration for the purposes of this determination.  Aside from this, there is no agreement between the parties that is required to be given effect.

Conditions

  1. In Evans v Western Australia at [213], Nicholson J noted:

    …there is nothing in s 38(1)(c) which expressly limits the nature of conditions other than s 38(2) ... The subject matter of the conditions appears to be shaped by the broad purpose there be a determination of the act and by the requirements of s 39 that in making its determination the arbitral body must take into account the criteria there listed.

  2. There should however, be material which supports the imposition of conditions.  For example, conditions can be imposed to minimise any adverse effect on the native title holders’ rights and interests if the material before the Tribunal justifies it (see, for example, Re Koara People at [93], and more recently India Bore Diamond v Bunuba at [52]).

  3. Further, in Evans v Western Australia at [213], Nicholson J noted:

    The evident purpose of s 38 … is to have the arbitral body finally determine the issues where negotiations between the parties have failed to do so ... I regard it as inherent in s38 the arbitral body not leave the outstanding issues between the parties unresolved.

  4. As mentioned previously, Budjiti are seeking that the following conditions are applied: 

    a.Any Permit activities to be limited to an area south of Humeburn Road; and

    b.Prior to any proposed activities on the land commencing, a Cultural Heritage Survey is to be completed by the Aboriginal Party pursuant to the conditions provided by Budjiti (see in Annexure 5.1).

  5. In relation to proposed condition (a), as shown in the mapping provided by the Grantee Party, Humeburn Road runs in a north west to south easterly direction in the south western portion of the proposed permit.  Additionally, the portion of the proposed permit to the south of Humeburn Road looks to be no greater than 10% of the area of the proposed permit, although this is an estimate.  Irrespective, it is a small portion of the proposed permit.  The basis upon which Budjiti is seeking activity is limited to this portion of the proposed permit is that mining and exploration activities should be limited to areas where there is pre-existing ground disturbance (Budjiti Contentions [4.47]).

  6. On this condition and those at Annexure 5.1 relating to the conduct of a Cultural Heritage Survey, Budjiti states that it proposes these conditions to ensure that any and all cultural heritage that is within the area of the proposed permit is protected from harm (Budjiti Contentions [4.43]).

  7. Having considered the parties submissions on these proposed conditions and more generally, I have decided not to impose conditions for the reasons that follow.

  8. In the first instance, an issue arises in regard to proposed condition 3 in Annexure 5.1, which proposes the Grantee Party pay the reasonable costs of nominated persons attendance and participation in the survey.  This in itself is uncontroversial, however in this instance, there is no agreement between the parties as to what ‘reasonable costs’ might be, leaving this as an unresolved issue between the parties.

  9. Conditions of the Tribunal have the effect of a contract between the parties (s 41(1) NTA). A condition such as this is effectively an ‘agreement to agree’, whereby the parties are required to come to terms at some later date. There is a risk that this will not occur, rendering this as an unenforceable condition. As such, it cannot be imposed.

  10. Secondly, and as noted previously, the parties engaged in a s 150 conference and possible further discussion where the opportunity to agree to terms in regard to a cultural heritage survey and other matters, was provided. No agreement was achieved and neither does it seem likely to be. In this circumstance, I am loathe to impose a set of conditions that were eminently within the reach of the parties, but were not able to be agreed.

  11. Thirdly, having examined the materials before me and having considered the s 39 criteria, I am not of the view that the need for these conditions has been properly made out. I have reflected in my consideration on the lack of evidence placed before me by Budjiti which has not enabled me to reach positive conclusions in relation to the assertions made in their contentions. If strong evidence was provided regarding sites of particular significance or other heritage values, placing conditions on the grant of the proposed permit to conduct a cultural heritage survey as a precautionary measure may be justified. As it stands however, I have formed the view that no proper justification has been provided.

  12. In arriving at this view, I have also had regard to the regulatory regime of the State.  While I acknowledge the reservations expressed by Budjiti on this regulatory regime, I make the assumption it will be complied with by the Grantee Party.  Without evidence in support of these reservations by Budjiti, I conclude the regulatory regime will provide the necessary protections.  In my view, this further reduces the need for the imposition of conditions, particularly where their need has not been properly made out or evidence to the contrary has not been provided.

  13. In regard to the proposed condition to limit activity to the south of Humeburn Road specifically, I have formed the view that it would not reasonable to impose such a condition.  While acknowledging the rationale upon which Budjiti has proposed this condition and again, the reservations expressed in relation to the regulatory regime of the State, I am of the view that Budjiti has not made out the need for such a condition.  Again, this is due to a lack of evidence generally, and a lack of evidence to support the need for such a condition. 

  14. As such, having considered the parties’ submissions, I will not impose conditions on this occasion.

DETERMINATION

  1. The determination of the Tribunal is that the act, being the grant of EPM 27946, may be done.

Mr G Kelly
Member
1 June 2023

Annexure 1 – Grantee Party Application Documents

Reference Description Date
Grantee Party Document 1 Form 5 Application 02/12/2022
Grantee Party Document 2 Map 1 – EPM 27946 Current overlapping tenures 13/11/2022
Grantee Party Document 3 Map 2.1 – EPM 27946 in relation to current Koriot Opal Mining Field 29/11/2022
Grantee Party Document 4 Map 3 – Restricted Area 264 Development of Opal Area 29/11/2022
Grantee Party Document 5 Map 4 – MC 60295 located within EPM 27946 13/11/2022
Grantee Party Document 6 Map 5 – Native title party areas of concern regarding effect of Grantee Party activities 02/09/2022
Grantee Party Document 7 Map 8 – EPM 27946 area sent to Budjiti representative (Liz McNiven) on 7 March 2022 07/03/2022
Grantee Party Document 8 Map 9 – Area of interest for drilling activities sent to Budjiti representative (Liz McNiven) on 7 March 2022 07/03/2022
Grantee Party Document 9 Map 10 – Area of use if Grantee Party cannot undertake activities north of Humeburn Road as requested by Budjiti, shared with Budjiti 02/09/2022
Grantee Party Document 10 Map 11 – Historical ML 60223 within area of EPM 27946, shared with Budjiti 02/09/2022
Grantee Party Document 11 Reference 4 – Report of Restricted Area 264 Development of Opal Area 13/11/2022
Grantee Party Document 12 Reference 5 – Small Scale Mining Code applicable to EPM 27946 02/12/2022
Grantee Party Document 13 Reference 6 – EPM 27946 approved work program (note: material repeated in Grantee Party contention materials) 02/12/2022
Grantee Party Document 14 Reference 7 – Cultural Heritage Database & Register Report EPM 27946 02/09/2022
Grantee Party Document 15 Reference 12 – Historical Report EPM 9667 13/11/2022
Grantee Party Document 16 Reference 13 – Historical Report EPM 15216 13/11/2022
Grantee Party Document 17 Reference 14 – Historical Report EPM 25128 13/11/2022
Grantee Party Document 18 Reference 15 – Historical Report ML 60169 13/11/2022
Grantee Party Document 19 Reference 16 – Historical Report ML 60223 13/11/2022
Grantee Party Document 20 Reference 17 – Historical Report ML 60398 13/11/2022
Grantee Party Document 21 Reference 18 – Permit Report MC 60256 29/11/2022
Grantee Party Document 22 Reference 19 – Permit Report MC 60295 29/11/2022
Grantee Party Document 23 Reference 20 – Permit Report MC 60402 29/11/2022
Grantee Party Document 24 Reference 21 – Permit Report MC 300123 29/11/2022
Grantee Party Document 25 Reference 22 – Permit Report MC 300250 29/11/2022
Grantee Party Document 26 Reference 23 – Permit Report MC 300259 29/11/2022
Grantee Party Document 27 Reference 24 – Current Title Search Boobara 17666224 29/11/2022
Grantee Party Document 28 Reference 25 – Historical Title Search 17666224 29/11/2022
Grantee Party Document 29 Grantee Party Timeline of Correspondence with Budjiti 02/12/2022

Annexure 2 – Grantee Party Contention Submissions

Reference Description Date
Grantee Party Document 30 Approved Work Program and Conditions 23/12/2022
Grantee Party Document 31 Environmental Plan 23/12/2022
Grantee Party Document 32 Environmental Request Information Sheet 23/12/2022
Grantee Party Document 33 Map of areas of interest for exploratory drilling 17/12/2022
Grantee Party Document 34 Pastoral Lease Report  29/11/2022
Grantee Party Document 35 Map of Restricted Area 264 for Development of Opal Area 29/11/2022
Grantee Party Document 36 Map of entire opal mining field in area of EPM 27946 29/11/2022
Grantee Party Document 37 Contentions 12/04/2023
Grantee Party Document 38 Statement of Agreed Facts 10/05/2023

Annexure 3 – State Book of Documents

Reference Description Date
State Document 1 Current Land Title Search for Lot 21 on Crown Plan HU53 (Title Reference 17666224) 03/01/2023
State Document 2 Preferential Pastoral Holding Lease 15/5323 – Boobara Preferential Pastoral Holding 03/12/1981
State Document 3 Gazette notice of Order in Council Restricted Area 264 13/07/1991
State Document 4 Gazette notice of Restricted Area 264 (Restriction of Grants) Order 1992 26/06/1992
State Document 5 Boobara Holding PH1738 27/07/1981
State Document 6 Survey Plan Lot 21 on HU53 30/08/1990
State Document 7 Resource Authority Public Enquiry Report ML 60402 04/01/2023
State Document 8 Resource Authority Public Enquiry Report MC 60256 04/01/2023
State Document 9 Resource Authority Public Enquiry Report MC 60295 04/01/2023
State Document 10 Resource Authority Public Enquiry Report MC 300123 04/01/2023
State Document 11 Resource Authority Public Enquiry Report MC 300250 04/01/2023
State Document 12 Resource Authority Public Enquiry Report MC 300259 04/01/2023
State Document 13 Resource Authority Public Enquiry Report ML 60439 04/01/2023
State Document 14 Resource Authority Public Enquiry Report MC 4191 04/01/2023
State Document 15 Resource Authority Public Enquiry Report MC 60048 04/01/2023
State Document 16 Resource Authority Public Enquiry Report MC 60049 04/01/2023
State Document 17 Resource Authority Public Enquiry Report MC 60055 04/01/2023
State Document 18 Resource Authority Public Enquiry Report MC 60191 04/01/2023
State Document 19 Resource Authority Public Enquiry Report MC 60225 04/01/2023
State Document 20 Resource Authority Public Enquiry Report MC 60268 04/01/2023
State Document 21 Resource Authority Public Enquiry Report MC 60279 04/01/2023
State Document 22 Resource Authority Public Enquiry Report MC 60280 04/01/2023
State Document 23 Resource Authority Public Enquiry Report MC 60281 04/01/2023
State Document 24 Resource Authority Public Enquiry Report MC 60288 04/01/2023
State Document 25 Resource Authority Public Enquiry Report MC 60301 04/01/2023
State Document 26 Resource Authority Public Enquiry Report MC 60302 04/01/2023
State Document 27 Resource Authority Public Enquiry Report MC 60305 04/01/2023
State Document 28 Resource Authority Public Enquiry Report MC 300074 04/01/2023
State Document 29 Resource Authority Public Enquiry Report MC 300223 04/01/2023
State Document 30 Resource Authority Public Enquiry Report MC 300382 04/01/2023
State Document 31 Map of current applications and granted mining, petroleum and geothermal permits in the vicinity of EPM 27946 04/01/2023
State Document 32 Results of Cultural Heritage Register and Database search (Department of Aboriginal and Torres Strait Islander and Multicultural Affairs) (note: same document submitted with Grantee Party application – Grantee Party Document 14) 04/01/2023
State Document 33 Department of Environment and Heritage Protection: Eligibility Criteria and Standard Conditions for Exploration and Mineral Development Projects (Version 2) 31/03/2016

Annexure 4 – State Contention Submissions

Reference Description Date
State Document 34 State Statement of Contentions 12/04/2023
State Document 35 State Summary of Contentions 12/04/2023
State Document 36 State List of Authorities  12/04/2023
State Document 37 Statement of Agreed Facts submitted jointly with Budjiti  10/05/2023

Annexure 5 – Budjiti Contention Submissions

Budjiti  Document 1 Statement of Contentions 14/03/2023
Budjiti Document 2 Summary of Contentions 14/03/2023
Budjiti Document 3 Index of Documents 14/03/2023
Budjiti Document 4 Letter from BAC Directors to NNTT 14/03/2023
Budjiti Document 5 List of Authorities 14/03/2023
Budjiti Document 6 Annexure A – Proposed Conditions 14/03/2023
Budjiti Document 7 Contentions in Reply 03/05/2023
Budjiti Document 8 Summary of Contentions in Reply 03/05/2023
Budjiti Document 9 Index of Documents Contentions in Reply 03/05/2023
Budjiti Document 10 List of Authorities Contentions in Reply 03/05/2023
Budjiti Document 11 Annexure B – Map 03/05/2023
Budjiti Document 12 Statement of Agreed Facts submitted jointly with the State 10/05/2023

Annexure 5.1 – Budjiti Proposed Conditions

  1. Prior to the commencement of mining operations over the Permit Area, a survey must be undertaken.

  2. A survey for condition 1 must be conducted by:

    i.suitably qualified archaeologist, ethnographer, anthropologist of other heritage professional, agreed between the Aboriginal Party and the Grantee Party, engaged and paid for by the Grantee Party;

    ii.Up to three Budjiti People, nominated by the Native Title Party (Nominated Persons). Nomination by the native title party must be in writing and include full contact particulars of the Nominated Persons.

  3. The Grantee Party must pay the reasonable costs of the Nominated Persons’ attendance and participation in the survey. This is not intended to include the professional costs of legal or other representation or advice. Other Budjiti People may attend as observers to the survey.

  4. The Grantee Party must give written notice to the Native Title Party of its intention to conduct the survey and when giving notice must include a suitable topographical map showing the areas proposed to be surveyed, and the location of the Permit Area. If within 30 days of receipt of the notice, the Native Title Party fails to nominate any persons for the survey, then the Grantee Party need not conduct such a survey.

  5. Subject to any law, a survey required under condition 1 must be completed within 30 days of the Native Title Party’s nomination with the parties cooperating in good faith on the conduct of the survey. If the survey is not carried out in this time due to the failure of the Native Title Party to cooperate in good faith with the Grantee Party, then the Grantee Party need not conduct such survey.

  6. The Grantee Party must not disclose to any person any confidential information given to it by the Native Title Party or the Budjiti People regarding Aboriginal heritage or cultural information, during or as a result of the survey, except (and only then on a confidential basis):

    i.with the written consent of the Native Title Party; or

    ii.to a bona fide prospective assignee of the lease; or

    iii.to an actual assignee of the lease; or

    iv.to its employees, agents, contractors and consultants for the sole purpose of ensuring that no Aboriginal sites or cultural heritage are interfered with and as far as the information relates only to the location of those areas; or

    v.as required by law; or

    vi.for a purpose under the Aboriginal Cultural Heritage Act 2003 (Qld).

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